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Wednesday, January 11, 2012

Essay on Juvenile Transfers - the Trial and Sentencing of Juveniles as Adults

            There is a universal consensus that juveniles are mentally, physically, and emotionally different from adults.  As such, treatment should be different between an adult criminal offender and a juvenile criminal offender.  This is the reason why juvenile cases are heard by juvenile courts and juveniles are tried and sentenced differently from an adult.  This is also the reason why juveniles who commit crime are called juveniles offenders while adults who commit crime are called criminal offenders.  However, in the past few decades, there has been a trend towards the transfer of jurisdiction from juvenile courts to adult courts – this is known as the juvenile transfer laws. 
            Transfer laws have been implemented in a number of states since three decades ago.  Not surprisingly these acts are being done in response to what the proponents of these transfer laws called as the super-predators and the increasing crime rate among juveniles offenders.  They also argue that juvenile crimes are becoming more violent and serious.  Thus, they proposed that there is a need to transfer juvenile offenders to the jurisdiction of adult criminal courts.  This is confirmed by the National Center for Juvenile Justice which said that in the past years transfer laws are becoming more common, more sweeping and more automatic. 
            The legality and constitutionality of judicial transfers is not being questioned as the state laws currently allow judicial transfers.  Recent Supreme Court cases have also declared that there is nothing unconstitutional about these transfers.  What is being questioned is the wisdom behind these judicial transfers.  This essay seeks to explain the concept of juvenile transfers and its harmful and destructive consequences to the juvenile offenders. 

Consequences of Juvenile Transfers
            The effectiveness of a policy will always be measured depending on its goals.  Policy makers say that juvenile transfers seek to reduce crime rate involving juvenile offenders.  They say that the problem of juvenile offenders stem from the ineffective juvenile justice system.  Because of the leniency of juvenile justice system, according to the proponents of juvenile transfers, society has given birth to a more violent and angry juveniles whom they call super-predators.   The only way to stop these super-predators from further committing crimes and destroying our society is by declaring that the government is serious in controlling crime and imposing upon them stricter punishment.  Thus, the primary goal of juvenile transfer is to deter crimes by serving as a warning to juvenile offenders that in case they commit crime serious punishment awaits them inside jails reserved for adults.  It also hopes that upon release those incarcerated in adult prisons will become fully reformed individuals.         
            Research however has failed to substantiate the theory that juvenile transfer may deter juvenile crimes.  There is also no basis in saying that juvenile transfer can reduce the likelihood of juveniles committing crimes.  According to the National Center for Juvenile Justice, “With respect to the general deterrence effects of these laws—their effectiveness in reducing crime in the general juvenile population, by discouraging the commission of offenses subject to transfer and criminal prosecution—the research has not produced entirely consistent results.” (“Different from Adults: An Updated Analysis of Juvenile Transfer and Blended Sentencing Laws,
With Recommendations for Reform,” 2008, p.8)   
            On the other hand, research has proven that juvenile transfers – transfer of juvenile offenders to the jurisdiction of adult criminal courts and the subsequent imprisonment of juvenile offenders in adult prisons – have counter-deterrent effect.  According to studies, juvenile transfers have the tendency to increase recidivism rate and violent offending.
            There are several reasons why juvenile transfer is unhealthy for a juvenile offender.  First is that the adult criminal courts and prisons are currently overcrowded.  As it is, Court dockets are already clogged resulting in the delay in the hearing of cases.  Case management has also become very difficult.  Adult prisons are also overcrowded, badly maintained and poorly managed.  If juvenile offenders will be added to the already clogged court cases of adult criminal courts and be confined in overcrowded adult prisons, the situation will only get worse not only for the adult offenders but even for the juvenile offenders. 
            Secondly, there is yet no research that will prove that placing juvenile offenders in the same prison as an adult is healthy for the juvenile offender.  If policy makers continue to allow juvenile offenders to be placed in the same confinement as an adult, then it would not come as a surprise if these juvenile offenders will leave the prison with Master’s degree in robbery or murder.  When a juvenile offender stays in the same facilities as an adult offender he does not only have a cell mate but he has a friend, an advisor and in most cases a role model.  This runs contrary to the policy of deterring criminality and deterring recidivism for juvenile offenders.  It bears stressing that despite the legislative policy of placing only violent juvenile offenders in adult courts, the reality is that this is not being strictly implemented.  According to the Department of Justice, 39% of the juveniles in adult prisons were sentenced merely for nonviolent offenses (J Steven Smith, 2002, p.1).  Moreover, the most serious charge for almost 40% of these young offenders was most likely a drug or nonviolent property offense (J Steven Smith, 2002, p.1).
            Thirdly, there is evidence that will prove that placing juvenile offenders in adult prisons only expose them to greater risks than if they are sentenced in detention facilities.  While it is true that there is a scarcity of data on rape, suicide and assault rapes among juvenile offenders in adult prisons, but this can be attributed only to the fact that it is to the best interest of prison officials to under-report statistics on abuses against juvenile offenders in prisons.  In some cases, states lump suicide deaths under the category of “unspecified cause.”  It must however be stressed that these children are exposed to greater harm when they stay inside the prison. 
            According to Michael G. Flaherty, a researcher at the Community Research Forum at the University of Illinois, juveniles are 7.7 times more likely to commit suicide than in juvenile detention centers (“The Risks Juveniles Face When They Are Incarcerated With Adults,” p.1).  The high incident of suicide rate among juvenile offenders in adult prisons only confirm the theory that they are abused more regularly and exposed to more violence inside adult prisons which drive them to desperation.  Incidence of rape against a juvenile offender is also more likely than in adult prison.  In a1989 study conducted to determine how juvenile offenders are being treated in adult prisons reveals that close to 10% reported a sexual attack or rape attempted had been levied against them in adult prisons.  Let us face reality.  If rape is happening against adult offenders, then it is more likely to happen against juvenile offenders who are most likely to be incapable of defending themselves against these the adult criminals. 

Juvenile Transfer to Adult Courts
As stated, juvenile transfers is the current trend among a majority of the states.  Among the legislative measures being used to transfer jurisdiction of juveniles to adult courts are: a) prosecutorial discretion; b) statutory exclusion; c) lowered age limits; d) “once an adult always an adult” policy; e) judicial waiver.
            One of the measures passed as a solution to juvenile crimes is prosecutorial discretion.  This is otherwise known as the direct file transfer since the prosecutors are given the complete authority to determine whether to file a case against a juvenile offender in juvenile courts or directly in criminal courts.  The reason why this is allowed is that original jurisdiction over these cases is held concurrently by both courts making it possible for prosecutors to file in either one of these courts.  One of the criteria used in filing cases in criminal courts is the gravity of the crime.  This means that for a crime of murder committed by a minor it is possible that a prosecutor may choose to file a case in criminal courts. In a study conducted by Bldg. Blocks for Youth Facts Sheet: Transfer of Youth to the Adult Criminal Justice System, it showed that 85% of the Juvenile transfer to adult courts are a result of prosecutorial discretion or automatic waiver while 15% are transferred per judicial waiver (Kelly M. Angell, 2004, p.133). 
            The problem with prosecutorial discretion is that currently few states define the extent of the discretion given to prosecutors.  There is no general principle prosecutors can use as guide in exercising its decision to transfer juvenile cases.  There is also no incentive for choosing the file juvenile cases in juvenile courts or for choosing to exercise this discretion sparingly.  Juvenile defendants are given no opportunity to question this discretion and to test the correctness of transfer decisions.  The principle behind a democracy is that the function of each and every department is checked by another.  No single department or government agency functions independently of another.  Every government agency is accountable for its decision.  The current system on prosecutorial discretion however limits the accountability of prosecutors for its decisions. 
            Another measure used to transfer jurisdiction is statutory exclusion or legislative transfers.  In effect, these laws grant criminal courts exclusive original jurisdiction over cases involving juveniles.  Some states automatically grant jurisdiction to criminal courts on offenses committed by juvenile offenders depending on either the age or the nature of the offense charged.  For example, in some states like Illinois, the laws state that a case of drug possession within 100 ft from school will be heard by adult courts regardless of the minority of the accused.  The basis for this transfer is the argument that the right to be tried under juvenile courts is not a constitutional right but a statutory which the legislative has granted and it can also take away.  Thus, in some states, the age limits are lowered so that regardless of the nature of the crime committed, the offender is tried as an adult.  Thus, the adult courts are automatically granted the authority to hear cases involving juvenile offenders if they have reached a certain age limit.  
            According to a 1999 report conducted by the National Criminal Justice Reference Series (NCJRS), statutory exclusion accounts for the largest number of juveniles tried as adults in criminal court (“All States allow juveniles to be tried as adults in criminal court under certain circumstances,” 1999 National Report Series, p.2).  By enacting statutes that exclude certain cases from juvenile court jurisdictions, these cases are automatically referred to the adult criminal courts.  The problem with this type of juvenile transfer is that the law fails to take into account the circumstances behind the commission of the crime by juvenile offenders.  While a number of juvenile offenders intentionally commit crimes, a great majority of these offenders did not intend to commit these crimes.  In fact, most of them only made poor decisions in their life.  Most of them committed the mistake of associating with the wrong group or wrong friends.  If the adult courts take into account various circumstances such as justifications defense, excuse defense, provocation and any other circumstances and reduces or relieves an adult accused from criminal liability on the basis of these circumstances then these peculiar circumstances should also be taken into account in determining whether juveniles should be tried as an adult or not.  Thus, neglecting to take into account the peculiar circumstances of the commission of the crime by these classes of juvenile offenders constitutes a serious injustice to them.  This is supported by David W. Roush (1997) who said that “An offense-based system for juveniles denies the individual characteristics of each child and overgeneralizes by enforcing a "one-size-fits-all" strategy. It also compounds the empirically demonstrated racial bias already present in our system” (p.1)    
            In judicial waiver, the state or the prosecution files a motion before the juvenile court to transfer jurisdiction from juvenile courts to criminal court.  A case originates in juvenile courts which may be transferred to adult courts upon approval of the judge.  It is the judge who determines whether the transfer should be effected based on the judge’s sole discretion, or because certain well-defined criteria has been met or upon a probable cause determination for an offense for which the state has deemed that the waiver is appropriate.  Statistics shows that for three decades the number of cases transferred to adult courts by judicial waiver has fluctuated.  Between 1971 to 1981, national juvenile transfers by judicial waiver has increased from less than 1% to 5% but by 1985 has declined to 1.4% in total cases.  (Kelly M. Angell, 2002, p. 132) 
Constitutionality of Juvenile Transfer
            There are many apprehensions about the increasing number of juvenile offenders being prosecuted as an adult in criminal courts and being placed in the same confinement as adults  Among the arguments raised are that it fails to address the special needs of the minors who at that tender age needs the protection and help of the society.  Also, it argued that transferring jurisdiction to criminal courts does not equip the minors of any learning necessary to reenter the communities.  Another argument is that the transfer fails to take into account the notion that violence is a learned behavior.  It must be stressed that most of the time these juvenile offenders were also victims of abuse or neglect. 
            Though the wisdom of the practice of transferring juvenile courts to criminal court is being questioned, there is no question about the constitutionality of these transfers.  Courts of different states have upheld the constitutionality of these transfers.  In the case of State v. Green
No. COA95-936, the North Caroline Court of Appeals recognized constitutionality of the transfer of juvenile cases of criminal courts.  It ruled that the decision to transfer a juvenile's case to criminal court lies solely within the discretion of the district court judge and, in making this decision, district court judges need only state the reasons for the transfer and need not make findings of fact to support the conclusion that the needs of the juvenile or the best interests of the State would be served by the transfer.
            In the case entitled In Re : J.L.W., No. COA99-283, the court likewise recognized the constitutionality of juvenile transfers.  It ruled that no constitutional right is violated so long as the judge considers that that the transfer meets the needs of the juvenile or serves the best interest of the State.  However, the juvenile court’s transfer order to a criminal court was vacated in this case and remanded to the juvenile court since the juvenile court's transfer order does not reflect that consideration was given to the needs of the juvenile, to his rehabilitative potential, and to the family support he receives.

            There are juvenile offenders who because of the severity and gravity of their crime need to be punished.  There are also many cases of juvenile crimes where the juvenile offenders deserve the leniency of treatment.  In these cases, placing them in the same penal facilities as an adult will only do more harm than good.  As such it is not being suggested that juvenile transfer laws be eliminated. Rather, juvenile transfer laws should be sparingly used and utilized only in extreme cases of violence committed by juvenile offenders.  Thus, it is suggested that together with the new laws being adopted transferring jurisdiction of juvenile offenders to adult criminal courts, there should also be fail-safe mechanisms which will allow criminal courts to re-transfer or return transferred cases back to juvenile courts.  In this way, judges in adult criminal courts can have the option to reject cases back to juvenile courts if based on peculiar circumstances of the case hearing the case in adult courts will not be beneficial for the welfare of the juvenile offender.
            Over one century ago, the juvenile justice system was created.  It was created as a result of the findings that juvenile offenders cannot be placed in the same penal facilities as an adult.  They also realized that juvenile offenders cannot be reformed inside adult prisons but they end up only being hardened criminals who are more likely to commit another crime upon their release.  The realization then was that juvenile offenders and adult criminals cannot be placed in one facilities because it was self-destructive and self-defeating. 
            Now, it seems that nothing has been learned from the experiences of our forefathers.  We go back 100 years before and commit the same mistakes they did.  As if we learned nothing from their mistakes.  Two matters have been cleared: First, there is no basis in saying that transferring jurisdiction of juvenile offenders in adult courts and punishing them as adults will promote the objective of deterring crime and preventing recidivism; Second, there is basis in saying that juvenile transfer is destructive to the juvenile offenders. 


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